Veasey v. Abbott

United States Court of Appeals, Fifth Circuit

April 27, 2018

MARC VEASEY; JANE HAMILTON; SERGIO DELEON; FLOYD CARRIER; ANNA BURNS; MICHAEL MONTEZ; PENNY POPE; OSCAR ORTIZ; KOBY OZIAS; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; JOHN MELLOR-CRUMMEY; DALLAS COUNTY, TEXAS; GORDON BENJAMIN; KEN GANDY; EVELYN BRICKNER, Plaintiffs - Appelleesv.GREG ABBOTT, in his Official Capacity as Governor of Texas; ROLANDO PABLOS, in his Official Capacity as Texas Secretary of State; STATE OF TEXAS; STEVE MCCRAW, in his Official Capacity as Director of the Texas Department of Public Safety, Defendants - Appellants UNITED STATES OF AMERICA, Plaintiff - Appellee TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND; IMANI CLARK, Intervenor Plaintiffs - Appelleesv.STATE OF TEXAS; ROLANDO PABLOS, in his Official Capacity as Texas Secretary of State; STEVE MCCRAW, in his Official Capacity as Director of the Texas Department of Public Safety, Defendants - Appellants TEXAS STATE CONFERENCE OF NAACP BRANCHES; MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, Plaintiffs - Appelleesv.ROLANDO PABLOS, in his Official Capacity as Texas Secretary of State; STEVE MCCRAW, in his Official Capacity as Director of the Texas Department of Public Safety, Defendants - Appellants LENARD TAYLOR; EULALIO MENDEZ, JR.; LIONEL ESTRADA; ESTELA GARCIA ESPINOSA; MAXIMINA MARTINEZ LARA; LA UNION DEL PUEBLO ENTERO, INCORPORATED, Plaintiffs - Appelleesv.STATE OF TEXAS; ROLANDO PABLOS, in his Official Capacity as Texas Secretary of State; STEVE MCCRAW, in his Official Capacity as Director of the Texas Department of Public Safety, Defendants - Appellants

Appeal
from the United States District Court for the Southern
District of Texas

Before
HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.

EDITH
H. JONES, Circuit Judge:

This
appeal by the state of Texas follows remand from the en banc
court concerning the state's former photo voter ID law
("SB 14"). During the remand, the Texas legislature
passed a law designed to cure all the flaws cited in evidence
when the case was first tried. The legislature succeeded in
its goal. Yet the plaintiffs were unsatisfied and
successfully pressed the district court to enjoin not only SB
14, but also the new ameliorative law ("SB 5").
Because the district court's permanent injunction and
order for further relief abused its discretion, we reverse
and render.

Senate
Bill 14 ("SB 14") was enacted in 2011 and generally
required voters to present one of five forms of
government-issued identification in order to vote at the
polls. Several Private Plaintiffs ("Plaintiffs")
and the Department of Justice challenged SB 14 on the grounds
the bill: (1) was a poll tax; (2) purposefully abridged the
right to vote on account of race, in violation of Section 2
of the Voting Rights Act (the "VRA"); (3) resulted
in abridgment of the right to vote on account of race, in
violation of Section 2 of the VRA; and (4) unconstitutionally
burdened the right to vote.

In
2014, the district court held: (1) SB 14 had a discriminatory
result because it provided African American and Hispanic
voters less opportunity to participate in the political
process and elect their candidates of choice, and (2) Texas
enacted SB 14 at least in part because of its adverse effect
on minority voters. Veasey v. Perry, 71 F.Supp.3d
627, 694 (S.D. Tex. 2014). The district court permanently
enjoined Texas from enforcing SB 14's voter-ID provisions
and reinstated Texas's preexisting voter-ID law, which
required in-person voters to present either a voter
registration certificate or execute an eligibility affidavit
and produce another form of identification. See id.
at 702-03. In Veasey v. Abbott, 830 F.3d 216 (5th
Cir. 2016) (en banc), cert. denied, 137 S.Ct. 612
(2017) ("Veasey II"), this court affirmed
the district court's finding that SB 14 had an unlawful
disparate impact on African American and Hispanic voters in
violation of § 2 of the VRA. However, the en banc court
reversed the district court's determination SB 14 was
enacted with a discriminatory purpose, and remanded the case
for further proceedings and for entry of an interim remedy
before the 2016 general election.

In
August 2016, the district court entered an interim remedy
agreed to by all parties. In fashioning an interim remedy,
this court directed the district court to "take special
care" to honor the State's policy preferences to
implement a photo-ID system and emphasized that a remedy that
"[s]imply revert[ed] to the system in place before SB
14's passage would not fully respect these policy
choices." Veasey II, 830 F.3d at 269, 271. The
parties worked together to develop a remedy whereby in-person
voters who lacked an SB 14 ID could cast a regular ballot
upon completing a Declaration of Reasonable Impediment
("DRI") and presenting a specified form of
identification. The seven possible impediments were: (1) lack
of transportation, (2) lack of documents necessary to obtain
acceptable ID, (3) work schedule, (4) lost or stolen ID, (5)
disability or illness, (6) family responsibility, and (7) ID
applied for but not yet received.

The DRI
also offered an "other" box, allowing voters to
write anything in the blank space to be able to vote. The
declaration further provided that the reasonableness of the
voter's impediment or difficulty could not be questioned
by election officials, and the voter signed the declaration
"upon penalty of perjury." The specified forms of
ID a voter was required to present in order to take advantage
of the reasonable impediment declaration were the same
documents required to vote under pre-SB 14 law: a valid
voter-registration certificate, a certified birth
certificate, a copy or original of a current utility bill,
bank statement, government check, paycheck, or other
government document showing the voter's name and address.
The interim remedy was used for the November 2016 general
election and remained in place pending further order of the
district court, with the understanding that all parties
"preserve[d] their right to seek or oppose future
relief."

In
February and March 2017, the Texas Legislature informed the
district court about legislation being considered during the
2017 session "to adjust SB 14 to comply with the Fifth
Circuit's decision." Both Texas and the United
States asked the district court to postpone further liability
proceedings until the end of the 2017 legislative session.
Indeed, in Veasey II, this court directed the
district court to reexamine the discriminatory purpose claim,
"bearing in mind the effect any interim legislative
action taken with respect to SB-14 may have." Veasey
II, 830 F.3d at 272. Nonetheless, the district court
proceeded to issue an opinion on the SB 14 discriminatory
purpose claim on April 1, 2017. In its 10-page opinion, the
district court simply incorporated most of its prior
findings, excluded most of those findings that this court
found inadmissible, and reiterated the conclusion that SB 14
was enacted, at least in part, for a racially discriminatory
purpose. The district court also ordered a hearing on
remedial procedures to be conducted after the close of the
legislative session.

Senate
Bill 5 ("SB 5") was enacted on May 31, 2017 as a
legislative remedy to cure and replace SB 14. SB 5 is
fashioned after the interim remedy and codifies a reasonable
impediment procedure for voters who lack and cannot
reasonably obtain a form of SB 14 identification.
See S.B. 5, §§ 1-2. The same seven
impediments listed in the interim remedy are provided to
voters by SB 5. See id. § 2. Notably, these
seven impediments cover every burden alleged by the 27 voters
relied on by Plaintiffs at trial of their initial suit. Like
the interim remedy, SB 5 requires a voter to swear or affirm
under penalty of perjury that he has a reasonable impediment
preventing the obtaining of compliant photo ID, and it
prohibits election officials from questioning the
reasonableness of the impediments sworn to by the voter.
See S.B. 5 §§ 2-3.

SB 5
differs from SB 14 in the following additional ways: (1) SB 5
extends the period within which an expired form of
identification will be accepted for voting, (2) SB 5 expands
the list of acceptable forms of identification, (3) SB 5
requires the implementation of mobile locations for obtaining
election identification certificates, and (4) SB 5 removes
the "other" option offered in the interim remedy.
See id. §§ 2-3; see also Texas
claims the open-ended "other" option was removed in
SB 5 to address abuses from the November 2016
election.[1]

Although
SB 5 was not set to take effect until January 1, 2018, Texas
agreed to implement the reasonable impediments provision laid
out in the district court's interim remedy until then.
Texas also publicly committed to provide written notice of
the new requirement to all active registered voters by the
end of 2017, train its election officials on SB 5 procedures,
and spend $4 million over two years on voter education and
outreach

Following
passage of SB 5, the State moved for reconsideration of the
district court's discriminatory purpose finding in light
of the amendments to SB 14. All parties agreed to rely on the
existing record and forego an evidentiary
hearing.[2] Indeed, Plaintiffs never sought leave to
amend their Complaint to add claims specifically challenging
SB 5.

The
district court denied the State's motion. On August 23,
2017, the court entered a remedial order permanently
enjoining SB 14 as well as SB 5, vacating the interim remedy,
and reinstating the pre-SB 14 law that lacked any photo voter
ID requirement. The district court held that the interim
remedy was "limited to addressing the discriminatory
results claim, " and in light of its finding of a
discriminatory purpose, the interim remedy was no longer
appropriate and broader relief was warranted. The court
placed the burden on the State, holding Texas failed to show
SB 5 "fully ameliorates the discriminatory purpose or
result of SB 14." Although the district court refused to
find SB 5 violated § 2 of the VRA or the Constitution,
[3] it
nevertheless reasoned, "the Court's finding of
discriminatory intent strongly favors a wholesale injunction
against the enforcement of any vestige of the voter photo ID
law, " and SB 5 "is built upon the
'architecture' of SB 14

The
district court ordered the commencement of a VRA § 3(c)
preclearance bail-in hearing and issued broad relief
enjoining the State from enforcing SB 14 and SB
5.[4]
On September 5, 2017, this court granted the State's
emergency motion and stayed the district court's orders
until the final disposition of this appeal. Veasey v.
Abbott, 870 F.3d 387, 392 (5th Cir. 2017).

STANDARDS
OF REVIEW

This
court reviews questions of jurisdiction de novo,
including arguments that a case or controversy has become
moot. See In re Scruggs, 392 F.3d 124, 128 (5th Cir.
2004).

A
district court's issuance of a permanent injunction to
remedy a violation of § 2 of the VRA is reviewed for
abuse of discretion. See United States v. Brown, 561
F.3d 420, 435 (5th Cir. 2009). However, where an injunction
is "grounded in erroneous legal principles, "
injunctive relief is not warranted and the district
court's decision will be reviewed de novo.
See Janvey v. Alguire, 647 F.3d 585, 592 (5th Cir.
2011) (quoting Byrum v. Landreth, 566 F.3d 442, 445
(5th Cir. 2009)). Additionally, under this Circuit's
precedent, a district court's interpretation of this
court's remand order, "including whether the
law-of-the-case doctrine or mandate rule forecloses any of
the district court's action on remand, " is reviewed
de novo. United States v. Elizondo, 475
F.3d 692, 695 (5th Cir. 2007).

DISCUSSION

On
appeal, the state of Texas and the United States raise
complementary arguments. The state contends initially that
this case has become moot, requiring vacatur of the
court's remand finding of intentional discrimination, by
the passage of SB 5 in 2017. The State also seeks reversal of
the district court's renewed finding of unconstitutional
discrimination. Together, the state and the United States
contend that the district court's remedial injunction
must be reversed and SB 5 reinstated as a valid remedy for
the Plaintiffs' claims. We consider each of these issues
in turn.

A.
Mootness

Ordinarily,
a lawsuit challenging a statute would become moot by the
legislature's enactment of a superseding law.
Diffenderfer v. Cent. Baptist Church of Miami, Fla.,
Inc., 404 U.S. 412, 414, 92 S.Ct. 574, 575 (1972). In
such a case, no live controversy remains concerning the old
law, because it is no longer in force. Any federal court
ruling on the old law would have no practical effect and the
court's conclusions would constitute an advisory opinion.
Further, dismissing as moot in light of the superseding
statute would require the court to vacate its prior ruling.
U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship,
513 U.S. 18, 29, 115 S.Ct. 386, 393 (1994).

This is
not the archetypal case. Veasey II remanded to the
district court with instructions to (a) assume the
"unwelcome obligation" of devising an interim
remedy to eliminate the Section 2 Voting Rights Act
violations pending the 2016 elections; (b) reconsider the
finding of unconstitutional intentional discrimination
without "facts" the en banc court held inapposite;
and (c) be mindful that any new photo voter ID law
subsequently passed by the state would "present a new
circumstance not addressed here" and "concerns
about a new bill would be the subject of a new appeal for
another day." 830 F.3d at 270-71. The parties heatedly
dispute the extent to which the district court properly
carried out this court's mandate, but without doubt, the
court's post-remand rulings touch each of these
instructions.

Consequently,
this appeal arrives in a posture similar to Operation
PUSH, in which this court affirmed the district
court's conclusion that the state's legislative
remedy for Section 2 violations was adequate. Miss. State
Chapter, Operation PUSH, Inc. v. Mabus, 932 F.2d 400,
412-13 (5th Cir. 1991). This court evaluated both the
liability findings and the new law pertinent to the question
whether the district court abused its discretion. There was
no suggestion of mootness arising from the passage of the
responsive legislation, which was analyzed for its
effectiveness as a proposed remedy. Id. at 409
(finding the challenge against the Section 2 violations
"not moot" because the lower court's decision
under the remedial legislation "was the remedy decision
growing out of the holding under" the original
legislation). While the sequence of events on remand differs
from Operation PUSH, the same issues are before us
on appeal: the status of the state's liability for
intentional discrimination against indigent minority voters,
and whether the district court abused its discretion in
rejecting SB 5 as a remedy for the Plaintiffs' claims.
This appeal is not moot.

B.
Scope of the State's Liability

The
Plaintiffs' claims, framed as violations of both Section
2 of the Voting Rights Act and the Fourteenth Amendment,
attacked the alleged racial disparity in indigent minority
voters' possession of and access to SB 14-required photo
voter IDs. The Plaintiffs could not condemn the principle of
requiring some type of photo ID, a principle upheld by the
Supreme Court in Crawford v. Marion Cty. Election
Bd., 553 U.S. 181, 191, 128 S.Ct. 1610, 1616-17 (2008).
Nor could Plaintiffs refute that over 95% of all Texas
voters, irrespective of race, already possess ID satisfactory
under SB 14. Their evidence thus targeted racially disparate
indigency, the lack of indigents' ready access to
drivers' licenses or birth certificates or EICs
("election identity cards"), and the law's
limited exceptions to the photo ID requirement. Aside from
expert testimony, 27 Plaintiffs' witnesses testified to
their specific difficulties in complying with SB 14 on these
grounds.

Whatever
the strength of the district court's renewed finding of
purposeful discrimination by the Texas legislature, the
discrimination has to be gauged by its impact on indigent
minority Texas voters according to the evidence presented at
trial. In any discrimination case, the proof of the extent of
disparate impact or disparate treatment defines the scope of
the defendant's liability. Thus focused, we need not
review the court's liability findings because even if we
were to affirm, the court's overreach in its remedial
injunction and proceedings was an abuse of discretion
meriting reversal.

The
district court here held that because SB 14 was enacted with
a discriminatory purpose, its effects must be eliminated
"root and branch." Because SB 5 retains
characteristics of SB 14's photo voter ID requirements,
the district court did not defer to the state. Indeed, the
district court acknowledged it was "not clear" what
would constitute a proper restraint from legislative
intrusion but then held that "[e]ven if some measure of
deference were required … that deference yields if SB
5 is not a full cure of the terms that render SB 14
discriminatory." The court burdened the state to prove
that the new remedial statute lacks any residual
discriminatory effect. After concluding that the state did
not meet its burden, the court imposed the previously
described injunction against both SB 14 and SB 5 and ordered
a proceeding to determine the state's potential liability
for Section 3(c) preclearance.

This
injunction and order far exceed the scope of the actual
violations found by the court. Under the circumstances of
this case, the court had no legal or factual basis to
invalidate SB 5, and its contemplation of Section 3(c) relief
accordingly fails as well. The remedial order constitutes an
abuse of discretion. In contrast, until a plaintiff pleads
and proves some constitutional or statutory infirmity ...

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